Jensen

The widow and two minor children of Kresten Jensen recovered judgment for $25,000 from Southern Pacific Company for the death of Kresten, which occurred while he was driving a truck easterly on Broadway Street, Burlingame, across the Southern Pacific tracks. He was hit by a southbound train. It was 5 p. m. on May 8, 1946.

(1) Did the verdicts in favor of the engineer, conductor and fireman, employees of the Southern Pacific Company, exonerate the company from liability based upon neglident operation of the train f No.

If the company’s liability, predicated upon negligent operation of the train, rested solely upon respondeat superior and not upon its own independent tort, exoneration of the trainmen would have exonerated the company. (Freeman v. Churchill, 30 Cal.2d 453, 461 [ 183 P.2d 4 ], and authorities there cited.)

However, in the instant ease, plaintiffs in one of the counts of the complaint, pleaded concurrent liability upon the part of the company and the trainmen. Such allegations presented the possibilty of proof of independent negligence upon the part of the company. This principle i was recognized in Bensons. Southern Pac. Co., 177 Cal. 777 [ 171 P. 948 ]. “The…